Citation Nr: 1505540
Decision Date: 02/05/15 Archive Date: 02/18/15
DOCKET NO. 13-03 230 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
M. Pryce, Associate Counsel
INTRODUCTION
The Veteran served on active duty from December 1961 to December 1964.
This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.
(The issue of entitlement to service connection for tinnitus is addressed in the remand that follows the decision below.)
FINDING OF FACT
The Veteran's hearing loss is not attributable to his military service.
CONCLUSION OF LAW
The Veteran does not have hearing loss that is the result of disease or injury incurred in or aggravated by active military service; sensorineural hearing loss may not be presumed to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.321, 3.385 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Notice and Assistance
The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014), requires VA to assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, medical evidence, or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. 5103(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).
The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
In the present case, the RO received the Veteran's claim of service connection for, among other things, hearing loss and tinnitus in May 2010. In a letter dated May 21, 2010, the Veteran was notified of the evidence required to substantiate his claim, as well as his and VA's respective responsibilities for obtaining such evidence. Accordingly, the duty to notify is satisfied.
Regarding the duty to assist, all available evidence pertaining to the claim decided herein has been obtained. The evidence includes his service treatment records (STRs), VA examination reports, and lay statements in support of his claim. Particularly, the record shows that the Veteran was afforded VA audiometric examinations in July 2010, November 2012, and April 2014. The Board finds that the April 2014 VA examination provides a complete rationale for all opinions and conclusions reached regarding the etiology of the Veteran's hearing loss, and thus complies with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Veteran has not identified any outstanding evidence and the Board is aware of none. Thus, the Board finds that VA has satisfied its duty to assist.
II. Analysis
Service connection will be granted if the evidence of record demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (a), 3.304 (2014). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999).
Here, the Board recognizes that certain chronic diseases, including organic diseases of the nervous system such as sensorineural hearing loss, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West. 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). Alternatively, for chronic diseases shown in service, as defined by regulation, the second and third elements of service connection may be established through demonstrating chronicity or continuity of symptomatology in accordance with 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) only applies to the listed chronic disabilities in 38 C.F.R. § 3.309(a)); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Chronicity is established if the appellant can demonstrate (1) the existence of a chronic disease in service and (2) current or present manifestations of the same disease. Id. at 495-97. Continuity of symptomatology may be established if it is demonstrated that (1) a condition was "noted" during service; (2) there is post-service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id.
Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2014).
Service connection is not precluded "for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service." Hensley, 5 Vet. App. at 159. "[W]here there was no evidence of the veteran's hearing disability until many years after separation from service, '[i]f evidence should sufficiently demonstrate a medical relationship between the veteran's in-service exposure to loud noise and his current disability, it would follow that the veteran incurred an injury in service; the requirements of section 1110 would be satisfied.'" Id. at 160 (quoting Godfrey v. Derwinski, 2 Vet. App. 352 (1992)).
A review of the record reveals that the Veteran's hearing was not tested upon enlistment and his separation medical examination report reveals normal hearing at all frequencies.
In July 2010, the Veteran underwent a VA audiological examination for the development of his claim, the report of which noted the following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
25
20
30
75
75
LEFT
20
20
35
75
80
Speech recognition was 88 percent for the right ear and 80 percent for the left ear based on the Maryland CNC Test. During the examination, the Veteran reported a history of unprotected exposure to hazardous noise as an artilleryman. He also reported unspecified civilian noise exposure, but stated that he "first noticed his hearing loss just after the military." Based on the audiometric test results, the Veteran received a diagnosis of mild to severe, high frequency, sensorineural hearing loss in both ears. The examiner concluded, however, that it was less likely than not that the Veteran's hearing loss was service connected because his hearing was "within normal limits" at separation, which "clearly indicates his hearing loss did not occur while in the military."
In November 2012, the Veteran underwent a second VA audiological examination, the report of which noted the following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
25
30
70
75
LEFT
25
25
40
80
80
Speech recognition was 90 percent for the right ear and 92 percent for the left ear based on the Maryland CNC Test. During the examination, the Veteran again reported having "first noticed problems hearing when he got out of the military." He reported difficulty hearing the television and certain types of voices, especially those of women. The Veteran stated that during his service as an artilleryman he was exposed to the noise of 155 mm howitzers without the benefit of hearing protection. Prior to enlistment, the Veteran delivered newspapers. Following separation, he worked in the power plant of a utility company for 30 years. He denied any occupational noise exposure, and recreational noise exposure was limited to "a little hunting when he returned home from the military." The examiner made a diagnosis of bilateral high frequency sensorineural hearing loss, but offered no opinion as to etiology due to the Veteran's claims file being unavailable for review. The examiner did state, however, that the Veteran's hearing loss had no impact on the ordinary conditions of daily life, including his ability to work.
In January 2013, the examiner provided an addendum opinion as to the etiology of the Veteran's hearing loss. With regard to hearing loss, the examiner opined that the Veteran's disability was less likely as not caused by or a result of in-service acoustic trauma because there were no complaints of hearing problems in his records and he had "normal hearing bilaterally upon military separation."
In January 2014, the Board reviewed the evidence of record and found the above medical opinions to be inadequate. Particularly, the Board noted that a negative VA medical opinion regarding the etiology of hearing loss cannot be based solely on "normal" audiometric findings recorded on the Veteran's separation examination. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993) (if evidence after separation from service should sufficiently demonstrate a medical relationship between the in-service exposure to loud noise and the Veteran's current disability, it would follow that the Veteran incurred an injury in service). It also found that the previous opinions failed to account for the Veteran's lay statements with regard to onset, continuity of symptoms and civilian noise exposure.
In April 2014, the Veteran presented for a new VA examination with regard to his claim for service connection for hearing loss, the report of which noted the following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
30
30
35
75
80
LEFT
35
30
45
85
85
Speech recognition was 88 percent for the right ear and 80 percent for the left ear based on the Maryland CNC Test. In the resulting opinion, the VA audiologist noted the Veteran's statements with regard to onset and continuity of his hearing loss, as well as his reported history of minimal recreational noise exposure from hunting. The VA audiologist again found that the Veteran's hearing loss was less likely than not caused by or a result of his military service. In supporting that opinion, the audiologist relied upon a 2005 study entitled Noise and Military Service: Implications for Hearing Loss and Tinnitus, particularly noting a passage which states that based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that delayed effects occur.
Based upon the foregoing evidence, the Board finds that service connection for the Veteran's hearing loss is not warranted. In coming to this conclusion, the Board finds particularly probative, the April 2014 VA audiologist's opinion, which followed an examination and complete review of the claims folder. In addition, the VA examiner cited to medical treatise evidence to support the conclusion that hearing loss was not likely related to remote auditory trauma in service.
Although the Veteran asserts that his bilateral hearing loss is due to his exposure to noise in service, the Board recognizes that etiology of dysfunctions and disorders is generally a medical determination and must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board acknowledges that lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Id. at 1377 n.4. The general principle that acoustic trauma may lead to hearing loss is commonly known and, therefore, the Veteran's assertion that noise exposure in service resulted in his current hearing loss has some tendency to make a nexus more likely than it would be without such an assertion. However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The Board finds the April 2014 VA examination report more probative than the Veteran's opinion regarding the cause of his hearing loss. The examiner is a medical professional and was able to review the overall record, including the Veteran's history and opinions. Moreover, implicit in the opinion provided by the examiner is the notion that hearing loss would not have been discernable to the Veteran at the time he left military service because his hearing was normal by objective testing. Consequently, the Veteran's statements of continuity since service are not credible.
As for the provisions of 38 C.F.R. §§ 3.307, 3.309, which allow for a presumption of service incurrence or aggravation for chronic disabilities manifested to a compensable degree within a year of separation from qualifying military service, there has been no indication that any hearing loss was manifested to a compensable degree within a year of the Veteran's military service. Consequently, this presumption is not helpful to the Veteran.
In conclusion, after a review of the entire record, because the weight of the evidence is against a finding of a nexus between the Veteran's in-service noise exposure and current disability, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not helpful to the Veteran. See 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102 (2014).
ORDER
Entitlement to service connection for hearing loss is denied.
REMAND
With regard to the Veteran's tinnitus claim, the Board finds the March 2014 VA audiological examination failed to comply with the Board's January 2014 remand order and, therefore, another remand is required. See Stegall v. West, 11 Vet App. 268, 271 (1998) ("[A] remand by . . . the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"). In January 2014, the Board remanded the Veteran's claim of service connection for tinnitus in order to obtain a new examination. Particularly, in its remand, the Board found that prior VA audiology examinations had failed to provide an adequate opinion with regard to the Veteran's tinnitus.
In that remand, the VA audiologist was asked to take into account the Veteran's report of his history of tinnitus since service, in-service noise exposure, and current symptoms; medical reasons for accepting or rejecting the Veteran's statements were required to be set out.
The Board notes that the VA audiologist recorded the Veteran's reported history, to include his assertion that his tinnitus began in service, and current symptoms such as ringing in the ears. However, the VA examiner did not address how the Veteran's report that his tinnitus had onset in service affected the final opinion, triggering the need to ensure compliance with the Board's prior remand. In sum, the VA audiologist failed to provide a reason for rejecting the Veteran's lay testimony regarding the onset and continuity of tinnitus.
Accordingly, the case is REMANDED for the following action:
1. Return the record to the March 2014 VA examiner for an addendum opinion regarding the etiology of the Veteran's current tinnitus. The electronic record and a copy of this remand must be made available to the examiner. If the March 2014 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. (The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion.)
The VA examiner should review the entire record pertaining to the Veteran's tinnitus, to specifically include the Veteran's statements regarding his in-service noise exposure, post-service occupational and recreational noise exposure, and history of symptomatology, to include his assertions that tinnitus commenced during his active service and has continued since.
Thereafter, the VA examiner should provide an opinion addressing whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's current tinnitus had onset in service or is otherwise related to his military service, to include his in-service noise exposure. The examiner must give a medical explanation for accepting or rejecting the Veteran's statements regarding his history of tinnitus since military service.
2. After the requested development has been completed, the opinion should be reviewed to ensure that it complies with the directives of this remand. If it is deficient in any manner, it should be returned to the VA examiner for corrective action.
3. After completing the requested actions, the agency of original jurisdiction (AOJ) should undertake any additional development deemed warranted. Thereafter, the AOJ should re-adjudicate the claim in light of all pertinent evidence and legal authority. If the benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs